As Congress moves closer to adjournment, the fate of a proposed criminal law that would require mandatory labeling of “sexually explicit” Internet content remains unclear.

Buried in the Senate State Justice Commerce appropriations bill, the chances for the labeling bill’s passage appear to hinge on how badly the lame duck Congress wants to leave town. The prevailing wisdom is that the Congress will not act on the remaining appropriations bills, and will instead adopt a continuing resolution, which simply extends current government funding levels until the next Congress convenes in late January. That’s a messy way to manage the taxpayers’ money, but it will take the labeling bill off the table for now. But if Congress decides to move ahead with the individual appropriations bills without striking the Internet labeling provision, the mess will take on constitutional proportions.

Earlier this month, the Seventh Circuit struck down the Illinois “Sexually Explicit Video Game” law. It’s a must read for lawmakers deciding the fate of the Internet labeling bill. The Illinois law required game manufacturers and retailers to place large labels with the numeral “18″ on any sexually explicit game. The definition of sexually explicit closely mirrored that found in the Internet labeling bill. The Court found that they law was not narrowly tailored and would interfere with the First Amendment rights of minors. (Yes, minors do have such rights). It further found that the requirement to affix the “18″ label was unconstitutionally compelled speech, directly rejecting the argument (also made by the Department of Justice on Internet labeling) that the label was no different that required nutritional labeling or warning labels on products including ingredients like mercury. Here is some of the relevant discussion:

“The [statute] requires that the ‘18′ sticker be placed on games that meet the statute’s definition of “sexually explicit.” The state’s definition is far more opinion-based that the question of whether a particular chemical is within a given product. Even if one assumes that the state’s definition of sexually explicit is precise, it is the State’s definition … the video game manufacturer or the retailer may have an entirely different definition of this term.”

There is nothing particularly groundbreaking or novel about this decision. It is one of a number of decisions that all reach the same conclusion about mandatory government warning label aimed at limiting minor’s access to sexually explicit material. But for anyone wanting to understand why the Internet labeling bill is plainly unconstitutional, it is well worth the read.

This entry was posted on Thursday, November 30th, 2006 at 2:01 pm and is filed under Free Expression. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.